Tag Archives: police

2nd Circuit Upholds Constitutionality Of Post-Shooting Breathalyzers For NYPD

It has been a little while since I posted here, so I am catching up on some “semi-recent” court rulings of note from around the country.  Here is one that may have slipped by you, but is worth a look.  As recently reported in Adjunct Law Prof Blog, the 2nd U.S. Circuit Court of Appeals has upheld a New York City policy requiring breathalyzer tests on officers immediately following a shooting death or injury caused by the use of their service pistol.  The case is entitled Lynch v. City of New York. I have placed a PDF of the case in the Box.

The NYPD breathalyzer policy requires that senior NYPD officials be notified of an officer-involved shooting with a gun, including the Internal Affairs Bureau (IAB). The policy then requires that a “portable breathalyzer test” be administered “in a private setting” to the “uniformed member(s) of the service who discharged a firearm.” If the portable breathalyzer test yields a reading of blood alcohol level of 0.08 or greater—the legal limit for driving an automobile in New York State—the officer in question must be transported to an IAB testing facility where he or she will be given a second test on a more accurate “Intoxilyzer” machine.

This particular policy arose out of a November 2006 shooting death of a suspect by undercover NYPD officers in Queens, New York.  Intense and widespread criticism from the public followed. In the wake of the Bell shooting, the Commissioner of the NYPD appointed a committee to review the Department’s undercover operations and to make recommendations for improvements. One recommendation was the breathalyzer policy.

Police unions challenged the policy on Fourth Amendment grounds, arguing that the officers’ Fourth Amendment privacy interests outweighed the NYPD’s interest in detecting and disciplining officers who use their guns while intoxicated. That argument was rejected, the court is essence holding that the police department has a substantial interest in deterring its officers from using firearms while intoxicated.

To my knowledge, the policy does not yet apply to other types of force (e.g., Tasers, batons, etc.) even if that use of force seriously injures.  Should it apply to Tasers?  I have personally handled cases where a Taser fired at the wrong part of the body can inflict serious and life-long injury.

What about some other, so-called “less lethal” weapons that still can cause substantial, possibly life-threatening injury?  See, e.g., Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272 [Officer used “less lethal” bean bag shotgun, causing serious and substantial injury to emotionally distressed suspect, including multiple cranial fractures and dislodging one eye].  I have seen an unauthorized, military-style, “take down” maneuver cripple a suspect.

Does it matter what size police department is under analysis?  Perhaps, the NYPD has had significant problems of this sort in the past, and that history justifies the policy.  What if that history is not present?

If one lets the mind wander a bit, it is not difficult to conclude that any type of force that results in serious or substantial; or, perhaps, “life-threatening,” should be the subject of inquiry into the officer’s state of mind, including state of intoxication, if any.  Why not include a drug test, too?  It hardly makes sense to just test for alcohol, but not drugs – does it?

Having handled a dozen or so police misconduct cases, I have been critical of police officers in particular circumstances in how they use force.  I also happen to agree with the New York policy as it currently stands.  However, I think there is some danger if this kind of policy expands to include other uses of force.

On the one hand, there are officers like Bay Area Rapid Transit (BART) Officer Johannes Mehserle who fatally shot an unarmed and prostrate Oscar Grant in Oakland, CA early New Year’s Day 2009.  As part of his defense, Mehserle states that he believed he was firing his X26 model Taser, not his service pistol.  Even if true, the X26 is bright yellow, while service pistols are the typical gun barrel black.  Assuming for the moment that Mehserle is right, an officer who makes a mistake that confuses his black pistol with a yellow Taser (ruling out color-blindness or some other physical impairment), one might conclude that analyzing the officer’s sobriety at the time is reasonable.  For more on this case, extensive coverage can be found here and here.

On the other hand, there is the officer called out to the domestic violence scene.  Faced with a generally tense, often rapidly-evolving situation, where the officer has already been warned that this is the type of service call statistically the most dangerous to his or her person, the officer is naturally on edge.  That is simply human nature.  Then, something happens which sends the events down a tragic path, and the suspect is shot and wounded or killed. Does that mean every time such a shooting occurs, officers are subjected to alcohol testing, or possibly drug and alcohol testing, when they were exercising their discretion in the field under those incredibly tense and dangerous circumstances?

What do you think?  Is the Lynch decision a civil RIGHT or a civil WRONG?  All opinions are welcome on this important topic.

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Speak Softly To Your Spouse In France – Or You May Be Guilty Of A Crime

In what appears to be a first-of-its-kind piece of legislation, France has enacted a law that criminalizes “psychological abuse” by one spouse against another.  The law applies to cohabiting couples as well as married couples.

The law is expected to cover a wide variety of verbal behavior, including repeated rude remarks, insults, false allegations of mis-behavior, and verbal threats of physical violence.  French police have been urged to issue a caution for first offenses, but repeat offenders could face fines, restraining orders, and even jail time.

Opponents of the law contend that it is a gimmick aimed to please feminist lobbyists, and will be impossible to implement.  But French premier Francois Fillon, who announced the law, said: ‘The creation of this offence will allow us to deal with the most insidious situations – situations that leave no visible scars, but which leave victims torn up inside.’

You can read an interesting article about the French law from Jonathan Turley here, and an article from Dailymail.com here.

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9th Circuit Rules Taser Use Excessive; Defines What Constitutes “Resisting Arrest”

Today, in the matter of Bryan v. McPherson; City of Coronado, the U.S. 9th Circuit Court of Appeals issued what appears to be a significant ruling on the propriety of police officers using tasers.  The Court held that a police officer‘s use of a taser against an individual, without warning during a traffic stop for a seatbelt infraction, was unconstitutionally excessive under the circumstances.  The circumstances in the case included the fact that the plaintiff was unarmed, did not level a verbal or physical threat against the officer, was 15-25 feet away from the officer, and was facing away from the officer.

According to the officer, the plaintiff took a step towards him, justifying the use of the taser.  The 9th Circuit rejected this argument, ruling that even if the plaintiff had done so, the officer was not justified in using an intermediate level of force.

One of the most interesting aspects of this decision appears to be the Court’s characterization of the taser as intruding upon a person’s bodily functions and integrity in a way that other non-lethal uses of force do not.  As such, use of a taser must be justified by a strong governmental interest that compels employment of such force.

The second interesting aspect of the case is the Court’s characterization of what constitutes “resistance.”  In many cases, police officers use the argument that a suspect was “resisting” in order to justify the application of a higher level of force than what is necessary under the circumstances. 

The Court held that, where a suspect complies with an officer’s instructions in all respects except that he did not remain in his car and was shouting gibberish and hitting his own legs, the person is not engaging in “resistance.”

Ever since its invention in 1974, the taser has been the subject of close scrutiny by civil rights advocates and the media.  Since at least 2004, Amnesty International has expressed grave concerns about the ease with which police officers use taser to inflict serious bodily injury on individuals.  You can link to Amnesty International’s website discussing tasers here.

Taser International, the company that manufactures the taser for law enforcement agencies, has also been the subject of numerous lawsuits over the weapon.

CRW will follow this decision closely to see if it is appealed to the U.S. Supreme Court.  In the meantime, I have placed a PDF copy of the decision in the Box for you to download entitled “City of Cornado Taser Case.”

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Tiger Woods’ Auto Crash: The Relevance Of Social Status To Unequal Treatment By Police

By now, you have probably heard or read the news accounts of Tiger Woods‘ bizarre automobile accident.  As reported in an article today by Dan Wetzel of Yahoo Sports, Woods was injured in an automobile accident in the wee hours of the morning on November 27, 2009.  According to Wetzel’s article, Woods’ car crash did more than just wreck the golf pro’s car (it is reported to have sustained $8,000 in damages).  The incident crashed Woods’ gated world of privilege and notorious privacy.

According to a USA Today article, Woods and his wife were expected to speak with police today, after shooing the police away from their gated community on two prior occasions.  However, MSNBC is now reporting that Woods canceled the interview with the police for a third time.

As Wetzel described it in his Yahoo article, “The Florida Highway Patrol is being treated like nearly everyone else seeking a private word with Woods through the years:  No way, no how, no comment.”

The circumstances surrounding Tiger Woods’ car crash are strange, to say the least.  And, whether right or wrong, Woods’ post-accident refusal to speak with police further shadows this already murky situation.  To be sure, if Tiger Woods believes he is being investigated for criminal misconduct in connection with the accident, he has the right to request counsel.  If arrested, he has the right to remain silent.  To my knowledge, however, Woods has not invoked his right to counsel, has not spoken to law enforcement through his counsel, and at this point, is only being asked to provide his driver’s license, registration, and proof of insurance.  Rather than cooperate with law enforcement, Woods has chosen to deliver a prepared statement on his website, which reads:

“As you all know, I had a single-car accident earlier this week, and sustained some injuries. I have some cuts, bruising and right now I’m pretty sore.
This situation is my fault, and it’s obviously embarrassing to my family and me. I’m human and I’m not perfect. I will certainly make sure this doesn’t happen again.

This is a private matter and I want to keep it that way. Although I understand there is curiosity, the many false, unfounded and malicious rumors that are currently circulating about my family and me are irresponsible.

The only person responsible for the accident is me. My wife, Elin, acted courageously when she saw I was hurt and in trouble. She was the first person to help me. Any other assertion is absolutely false.

This incident has been stressful and very difficult for Elin, our family and me. I appreciate all the concern and well wishes that we have received. But, I would also ask for some understanding that my family and I deserve some privacy no matter how intrusive some people can be.”

Deserves?  Really?  For 12 years, I have worked on civil rights cases of one kind or another.  In cases involving allegations of police misconduct, my clients were generally poor and charged with relatively minor offenses.  Some were white; some were not.  Often, just like in Woods’ case, my clients’ friends and family were involved in the case, either as co-plaintiffs or witnesses.

What irritates me about Woods’ case is the complete class-based double standard at work.  By some accounts, Tiger Woods is the wealthiest sports celebrity in the world.  The fact that he has canceled not one, not two, but three meetings with police to discuss the accident – and, furthermore, that the police seem to slink away like scolded dogs when he cancels – is astonishing.  One of my clients once tried this tactic with the police from the privacy of his own property only to find himself beaten and tased multiple times, along with several members of his family. Recently, a 10 year old Arkansan girl was tased for refusing her mother’s command to take a shower.  You can read Jonathan Turley‘s excellent article about that outrageous case here.  Civil rights, you say?  P’shaw.

Of course, my client and the 10-year old Arkansan girl lacked two things that Tiger Woods has plenty of – money and prestige.  This begs an age-old question:  Does money and prestige equal preferential treatment?  As George Orwell wrote in Animal Farm, “All animals are created equal, but some animals are more equal than others.”  Is that the principle that we are witnessing in Woods’ case?

Florida law states:  “Whoever shall resist, obstruct, or oppose any officer…in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.”  In other words, under Florida law, one can be guilty of obstruction whether or not their resistance rises to the level of actual violence against a police officer.

I have nothing against Tiger Woods.  As a matter of fact, before this incident, I would not have imagined ever blogging about Tiger Woods.  Moreover, having handled police misconduct cases over the years, I can say with complete sincerity that I am no fan of the police.  However, Woods needs to do what everyone else in the U.S. must do under similar circumstances.  He needs to cooperate with the police as they attempt to execute their duties, and if this is a minor incident with no irregularities, put the unfortunate event behind him.  His method of handling the situation only makes the case more troubling, and it actually fuels greater speculation and invasion of his and his family’s privacy.

Update:  Police To Continue Woods Investigation Without Input

This morning, CNN is reporting that Florida police will continue to investigate the details of Tiger Woods’ auto accident without input from Woods.  CNN’s Susan Candiotti and Ross Levitt write:

“Under Florida law, Woods must show his license, registration and proof of insurance to police, but is not obligated to give a statement on the crash. His attorney Mark NeJame handed over the required documents to the troopers Sunday at Woods’ home, Montes said.  [Montes is a Sgt. with the Florida Highway Patrol.]

NeJame told CNN he stood by Woods’ statement and had no further comment.

‘If we’re unable to meet with him, we’ll move on with our investigation,’ Montes said. But she called the delays ‘very unusual, because it’s such a minor accident’.”

Update:  Woods Skips Own Tournament; Cited And Fined For ‘Careless Driving’

According to Greg Ferguson of the Associated Press, Tiger Woods will skip his own tournament, the Chevron World Challenge.  Following a statement posted by Woods on his website, and the release of a neighbor’s 911 telephone call, questions continue to linger about the auto accident that took place in the early morning hours of November 27, 2009.  As Ferguson points out in his article:

Still, even the release of the 911 tape and Woods’ statement failed to answer several basic questions about the accident:

– Where he was going at that time of the night?

– How did he lose control of his SUV when it wasn’t going fast enough to deploy airbags?

– Why were both rear windows of the Cadillac Escalade smashed?

– If it was a careless mistake, why not speak to state troopers trying to wrap the investigation?

As Woods canceled his appearance at his own tournament, Florida authorities reported that Woods will be cited for “careless driving,” fined $164, and will receive 4 points against his driver’s license.  No further criminal charges or investigation will occur.  A previous news report indicated that a search warrant was sought for Woods’ medical records, but investigators now say that insufficient evidence exists to issue such a warrant.

“Careless driving” is a citable offense under Florida law.  Florida Statutes 316.1925, subdiv. 1 states:

Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. Failure to drive in such manner shall constitute careless driving and a violation of statute.

Because law enforcement appears ready to let the matter drop, the case appears to be over from a purely legal standpoint.  However, it remains doubtful that the incident will be so quickly forgotten, regardless how much Woods may want it to be.

You can link to the Ferguson article here, reprinted in the Jacksonville Daily News.  You can link to an article discussing the charges against Woods here, as reported in the New York Times.

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